David Paul Finley

The Crown sought an extension of time to serve and file a motion for leave to appeal from a summary conviction appeal judgment that had set aside a sexual assault conviction and ordered a new trial.

The proposed appeal concerned the application of s. 278.1 of the Criminal Code to a psychiatrist’s records of joint counselling sessions involving the complainant and the accused.

The court held that, although the Crown’s diligence in locating and serving the respondent before the filing deadline was open to criticism, the Crown had formed an intention to appeal within time, no undue prejudice was shown, and the proposed appeal was arguable.

Given the significance of the legal issue and the interests of justice, the extension was granted.

The appellant appealed convictions for aggravated assault, robbery, and uttering a death threat, and also appealed sentence.

The court rejected the challenge to the jury charge on identification evidence, holding the instruction was sufficient and finding no merit in that ground.

On sentence, the appellant argued parity required a reduction after a co-offender's sentence had been lowered on appeal.

The court held parity did not mandate equal sentences where the offenders' circumstances differed, including remorse, criminal record, and post-sentence evidence, and upheld the sentence as fit and free of error in principle.

The Crown appealed from the dismissal of a summary conviction appeal after the accused was acquitted of impaired care or control and care or control over 80.

The Court of Appeal held that, to establish care or control of a motor vehicle, the accused's act or conduct in relation to the vehicle must create a risk of danger, whether by putting the vehicle in motion or in some other way.

Reconciling the Supreme Court authorities, the court concluded that an inoperable vehicle may still ground liability if it presents some danger in the hands of an impaired person, but no such danger was established on the facts presented.

It was therefore open to the trial judge to conclude that an impaired person sitting in an immovable vehicle in a ditch while waiting for a tow truck was not in care or control.

The Crown's appeal was dismissed and no costs were awarded.

The appellant challenged a criminal conviction on the grounds that the verdict was unreasonable and that the trial judge erred in refusing a mistrial.

The court held that, although the case was circumstantial, the cumulative effect of the evidence, particularly the pathologist’s opinion and an unsigned letter, supported a verdict that a properly instructed trier of fact could reasonably render.

The court further held that the trial judge did not err in declining to grant a mistrial and that two letters tendered on appeal did not satisfy the Palmer criteria for admissibility as fresh evidence.

The appeal was dismissed.

The appellant appealed a substituted conviction on an over-80 charge arising from erratic driving and breathalyzer readings of 180 mg.

The central issue was whether evidence that the accused consumed alcohol while waiting for breath testing was 'evidence to the contrary' under s. 258(1)(c) of the Criminal Code.

The majority held that s. 258(1)(c) creates a temporal presumption of identity, distinct from the presumption of accuracy, and that rebuttal evidence need only show the blood alcohol level at driving differed from the level at testing, not that it was below the legal limit.

Because the Crown led no other evidence to establish the blood alcohol level at the time of the offence, the acquittal was restored.

The appellant, who suffered from schizophrenia and auditory hallucinations, was arrested on outstanding warrants and subsequently confessed to a murder and several robberies.

He waived his right to counsel multiple times, despite advice from a lawyer to remain silent, claiming voices in his head compelled him to confess.

The trial judge excluded the statements, finding the appellant lacked the capacity to appreciate the consequences of waiving his rights, leading to an acquittal.

The Court of Appeal ordered a new trial.

The Supreme Court of Canada dismissed the appeal, holding that the 'operating mind' test applies to the confession rule and the waiver of Charter rights, requiring only that the accused have sufficient cognitive capacity to understand what they are saying and that it can be used against them, which the appellant possessed.

The accused was charged with touching a child for a sexual purpose.

At trial, the Crown successfully requested that the 12-year-old complainant testify behind a screen pursuant to s. 486(2.1) of the Criminal Code.

The accused challenged the constitutionality of the provision, arguing it violated his right to a fair trial under ss. 7 and 11(d) of the Charter.

The Supreme Court of Canada held that s. 486(2.1) does not infringe the Charter, as the use of a screen to protect young complainants facilitates the truth-seeking process without depriving the accused of the ability to cross-examine or the presumption of innocence.

The appellant appealed from a judgment of the Ontario Court of Appeal which set aside his acquittals and substituted convictions for possession of pay television decoders intended to access a telecommunication facility without payment, contrary to s. 327(1) of the Criminal Code.

The Supreme Court of Canada dismissed the appeal, agreeing with the Court of Appeal's interpretation of the provision and upholding the substituted convictions.

The appellant, while intoxicated, forced two police officers from his mother's home with a shotgun.

He was acquitted at trial of possession of a weapon for a purpose dangerous to the public peace, as the trial judge found no appreciable gap between the possession and the confrontation.

The Court of Appeal set aside the acquittal and entered a conviction.

The Supreme Court of Canada allowed the appeal in part, finding that while the trial judge erred in law regarding the elements of the offence, the Court of Appeal erred in entering a conviction instead of ordering a new trial, as the trial judge had not fully considered the appellant's intoxication defence.